¶1I concur in the result. The contract does not stipulate that appellee shall make no sales in Indianapolis other than by appellant. If it had done so, and if the breach averred were in making such sales directly or by other agents, then a fixed amount to be paid appellant because- thereof might be a penalty or liquidated damages according to circumstances, but the breach set up is the failure of appellee to- pay commissions according to his agreement upon sales made in Indianapolis. The promise is a direct one, and unless the contract is illegal should be performed. I do not think there is anything illegal in the agreement. Of course no question going to the manner of procurement, or other affirmative defense based on matter of fact, can arise on a demurrer to the pleading. The making of sales by appellee in Indianapolis was contemplated by the contract, and the rate of commission upon such sales was definitely fixed; and, sc far as the law is concerned, the parties must .'abide by the contract they themselves have made. Wiley, P. J., concurs in result and in the concurring opinion.
34 Ind. App. 176
Benner v. Magee
Decided April 22, 1904
Indiana Court of Appeals · decided 1904-04-22
<p>1. Contracts. — Liquidated Damages. — Penalty.—A contract entered into between the cross-complainant, an extensive dealer in stone in Indianapolis, and the plaintiff, the owner of a stone-quarry, providing among other things that for all the stone sold by the cross-complainant for the plaintiff he should receive a five per cent, commission, and for all stone sold in such city by the plaintiff himself or through others than cross-complainant, the cross-complainant should receive twenty-five per cent, commission, such contract further binding cross-complainant not to sell stone for others than those named in the contract, and not forbidding the plaintiff to sell personally or through others in such city, such contract for a commission of twenty-five per cent, must be held to be liquidated damages and not a penalty, since the loss to cross-complainant can not “be easily and precisely determined by any pecuniary standard” and the per cent, fixed can not be said to be greatly disproportionate to the loss. p. 177.</p>
Cited by 2 later decisions — most recently November 1905
2 state decisions
Good law ✅— No negative treatment on recordhow we know
Reversed · Decided 1904-04-22
View the full empirical analysis of this case →